Draft Rule Opening Council Committees Met With Caution

SACRAMENTO (CN) – A long list of broad exceptions attached to a draft rule that would open Judicial Council committee meetings to the press and public was met with cautious criticism Thursday from reporters and newspaper advocates. “This is really open to wide discretion by whoever is on the committee,” said Jim Ewert, General Counsel for the California Newspaper Publishers Association. “The exemptions they have created are very, very broad.” Judicial Council committee chiefs, including Judge Kenneth So and Justice Douglas Miller, said the rule still needs a lot of work. “We are going to take all the input, and in all likelihood will be narrowing some of these exemptions,” said So who heads the Public Coordination and Liaison Committee that advises on legislation. “We’ve done a great job in creating a presumption of openness. We have to balance that with how we do business,” said Miller who heads the powerful Executive and Planning Committee that sets the agenda and the overall direction of the Judicial Council. Steven Maviglio, spokesperson for Assembly Speaker John Perez, said the rule is still at a very early stage. “They’re just taking the first baby steps,” said Maviglio. “It’s very early in the game.” The lengthy list of broad exemptions in the draft rule would allow committee chairs to close meetings when the subjects are security plans, raw data and statistics, the buying of property, legislative strategy, agenda setting, anything that involves attorney and client — in all 17 exemptions, many of them with little or no definition. The Judicial Council has a history of making decisions in closed-door committees followed by open Judicial Council sessions where the committee decisions are unanimously approved with little or no debate. Trial judges have said the council simply “rubber stamps” the decisions made secretly by the committees. That manner of decision making drew the Legislature’s attention this summer when lawmakers included a clause in the 2013 budget mandating open meetings for all the council’s myriad advisory committees, sub-committees, working groups and task forces. Governor Jerry Brown vetoed the clause after lobbying from Chief Justice Tani Cantil-Sakauye, who also said she was committed to opening as many committee meetings as possible. The Legislature then wrote language into a supplemental report requiring the Judicial Council to create more transparent meeting rules. Pushing to comply with that language, the heads of the council’s big four internal committees — that set the council’s agenda, propose new court rules, oversee court technology and advise on legislation — presented the new rule at a press conference Thursday morning. The press briefing took place in a pink-walled hearing room at the Capitol with the judges at a semi-circular table facing red, theatre-style seats where about 20 reporters asked questions, a far greater number than the one or two who attend Judicial Council meetings. Justice Miller said he recognized the need for transparency when the courts are spending more than $3 billion in public money to run the biggest courts system in the nation. “It’s something we want to get right. It’s something we’re invested in and it’s important to the public,” Miller told the reporters. “If we are going to spend public money it should be in a public setting.” He characterized the draft proposal as a big move towards transparency, but noted its rough nature and the need for refining the language, particularly for the exemptions. “There may be some of these we understand,” said Miller, “but we need to put in simple plain English language.” For California’s newspapers, their chief lobbyist said after the press conference that the proposal was in the overall a good move in the direction of open government. “We just got it today and are still poring through it,” said Ewert. “My initial take is I think it’s interesting, and certainly not something they had to do, so to that end I think it’s a good thing.” Ewert said he was concerned about the wording of the exemptions, some of which, like the exemption for discussion of draft reports and agenda setting, are broad and unclear. “There may be certain circumstances where a draft report may not be in the public interest to disclose, but give it a standard,” he said. “This is really open to wide discretion by whoever is on the committee.” Ewert also challenged the notion that discussions about raw data and statistics should be considered sensitive and therefore exempt from public view. “Under the Public Records Act, even if that information is contained in a preliminary draft, courts have ruled that information can be extracted,” he said. “The analyses of that information, the thought processes of anyone who is preparing that information — those things are exempt, but not the raw information itself. Those are facts that are always going to be facts. This leaves me wondering what the need for that exemption is.” Part of the difficulty faced by the Judicial Council relates to the enormous geography of California stretching 800 miles from the border with Mexico to the border with Oregon, an expanse that includes 58 separate regional courts including the behemoth of the south, Los Angeles, and tiny Modoc County in the far north. Because of the distance and a lack of funds, nearly all the council’s advisory committees meet over the phone. The number of participants, generally judges and court administrators, can range into the hundreds. “I was struck by was the idea that most of these meetings are conducted by teleconference and it’s going to be interesting to see how they’ll allow for public comment,” Ewert said. “What happens during the meeting? How they provide adequate public access to that going to be significant.” In taking questions from reporters, the judges struggled to explain the exemption that would close the door when a committee discusses legislative strategy. Historically, decisions on what legislation the Judicial Council will support have been made by its Policy Coordination and Liaison Committee. Those meetings have in the past been closed to the press. That tradition of closure is tied to a legendary controversy within California’s judiciary, where a member of the court administrative office lobbying staff inserted language in a budget trailer bill would have stripped the power of local judges to choose their own presiding judge and head clerk, giving that power over to the Judicial Council which is strongly influenced by the administrative office. In the telling of the story, it is described as a sneak attack on local courts in the darkness of a closed committee hearing, a classic example of over-reach by the mandarins on high. Running through the comments is the idea that such a gambit would never have survived a committee process that was open. “There’s a misconception that the advisory committees are policy making committees,” said Miller in answer to that point. “They take their direction from the council and the council has to approve those in a public meeting.” “There are proposed laws on a regular basis that have an impact on the judicial branch and the negotiations the process of coming up with a bill that the judicial branch feels is more appropriate are very sensitive,” Miller added. “If we had to hold those discussions in an open meeting there would be no point in negotiating. It’s not that we want to keep legislative discussions behind closed doors.”